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CRIMINAL CODE (TERRORIST ORGANISATION--BOKO HARAM) REGULATION 2014 (SLI NO 92 OF 2014)

EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 92, 2014

 

Issued by the authority of the Attorney-General

 

 Criminal Code Act 1995

 

Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014

 

 

Section 5 of the Criminal Code Act 1995 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.  The Schedule to the Act sets out the Criminal Code (the Code).

 

Division 102 of the Code sets out the offences in relation to terrorist organisations, which are: directing the activities of a terrorist organisation; being a member of a terrorist organisation; recruiting persons to a terrorist organisation; receiving training from or providing training to a terrorist organisation; and being an associate of and receiving funds from or making available funds, support or resources to a terrorist organisation.

 

Offences in Division 109 of the Code apply to conduct (or the results of such conduct) constituting the alleged offence whether or not the conduct (or the result) occurs in Australia.

 

A 'terrorist organisation' is defined in subsection 102.1(1) of the Code as:

 

 

The purpose of the Regulation is to specify Boko Haram, also known as Group of the Followers of the Prophet for Propagation and Holy Struggle, Jama'atu Ahlis Sunna Lidda'awati Wal-Jihad, Jama'atu ahlu- Sunna Lidda' Awati Wal Jihad, Nigerian Mujahideen, Nigerian Taliban, People Committed to the Propagation of the Prophet's Teachings and Jihad, Western Education is Forbidden, Yusuffiya Movement and Yusuffiya Sect, for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code. 

 

The Regulation enables the offence provisions in Division 102 of the Code to continue to apply to persons with links to Boko Haram.  Details of the Regulation are set out in Attachment A.

 

Subsection 102.1(2) of the Code provides that before the Governor-General makes regulations specifying an organisation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code, the Minister must be satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur) or advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

 

In determining whether he is satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, the Minister takes into consideration an unclassified Statement of Reasons prepared by the Australian Security Intelligence Organisation (ASIO) in consultation with the Department of Foreign Affairs and Trade, as well as advice from the Australian Government Solicitor.  The Statement of Reasons in respect of Boko Haram is at Attachment B.

 

Subsection 102.1(2A) of the Code provides that before the Governor-General makes a regulation specifying an organisation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code, the Minister must arrange for the Leader of the Opposition in the House of Representatives to be briefed in relation to the proposed regulation.

 

Prior to making the Regulation, consultations were held with the Department of Foreign Affairs and Trade, ASIO and the Australian Government Solicitor.  In addition, the Attorney-General wrote, on behalf of the Prime Minister, to the Premiers and Chief Ministers of the States and Territories and the Attorney-General offered the Leader of the Opposition a briefing.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.  Subsection 102.1(3) of the Code provides that regulations for the purposes of paragraph (b) of the definition of 'terrorist organisation' cease to have effect on the third anniversary of the day on which it takes effect.

 

Statement of Compatibility with Human Rights

 

Overview

 

The Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014 makes it an offence under Division 102 of the Criminal Code, to direct the activities, become a member of, recruit, train or receiving training, get funds to, from or for Boko Haram, and provide support or associate with Boko Haram. 

 

The offence in subsection 102.8 of the Criminal Code of associating with a terrorist organisation is limited in its application only to an organisation that is a listed organisation under Criminal Code Regulations.  The offence does not apply if the association is with a close family member, or takes place in the course of practising a religion in a place used for public religious worship, or the association is for the purpose of providing humanitarian aid or for the purpose of providing legal advice or representation. 

 

The object of the Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014 is to protect national security, public safety and the rights and freedoms of persons within and outside of Australia. 

 

Human rights implications

 

This instrument engages the following rights:

 

*         Article 6

*         Article 19, and

*         Article 22.

 

This will engage the inherent right to life expressed in Article 6 of the International Covenant on Civil and Political Rights (ICCPR). 

 

The object of the Regulation also engages Article 19 and Article 22 of the ICCPR.  Whilst Article 19 protects the right to freedom of expression, this right may be subject to restrictions which include protecting national security.  The right to freedom of association in Article 22 of the ICCPR protects the right to form and join associations to pursue common goals, such as political parties.  Article 22(2) provides that freedom of association may be subject to restrictions imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

 

Whilst the Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014 may limit the right to freedom of association with Boko Haram, the association offence is subject to the safeguards outlined above.  The general limits of the right to freedom of association with Boko Haram are reasonable, necessary and proportionate, and are in the interests of public safety and national security, after taking into consideration the direct and indirect terrorist activities of the organisation, which threaten human life, as detailed in the Statement of Reasons (at Attachment B).

 

The Criminal Code offences in Division 102 applying to terrorist organisations do not target any specific religious or ethnic group and are designed to promote security and protect all members of the community from the threat of terrorism, regardless of national or ethnic origins or religious beliefs.

 

The information in the Statement of Reasons (Attachment B) supports the Attorney-General's decision made on reasonable grounds, that Boko Haram satisfies the criteria for listing as a terrorist organisation under subsection 102.1(2) of the Criminal Code. 

 

There are safeguards and accountability mechanisms in the Act providing for consultation and enabling review of Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014 specifying an organisation as a terrorist organisation.  These measures include the following:

 

*         the Commonwealth must consult with the States and Territories in accordance with the Inter-Governmental Agreement on Counter-Terrorism Laws.  The Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014 may only be made if a majority of the States and Territories do not object to the regulation within a reasonable time

 

*         under subsection 102.1(2A) the Minister must arrange for the Leader of the Opposition to be briefed in relation to the proposed regulation

 

*         under subsection 102.1(3) the Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014 will cease to have effect on the third anniversary of the day on which it takes effect

 

*         subsection 102.1(4) provides that if the Minister ceases to be satisfied of the criteria necessary for listing an organisation under subsection 102.1(2) of the Criminal Code, the Minister must make a declaration to that effect.  The effect of the Minister's declaration is that the organisation is de-listed as a terrorist organisation under Division 102 of the Criminal Code

 

*         subsection 102.1(17) provides that an individual or an organisation may make a de-listing application to the Minister

 

*         the Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014 may be reviewed by the Parliamentary Joint Committee on Intelligence and Security under section 102.1A of the Act, and

 

*         both Houses of Parliament may disallow the Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014 within the applicable disallowance period which is 15 sitting days after the regulation was laid before that House, as provided in subsection 102.1A(4).

 

Conclusion

The Regulation is compatible with human rights because it advances the protection of human rights, and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate to achieving a legitimate objective.

 

 

 

 

 

 

 


Attachment A

 

Details of the Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014

 

Section 1- Name of Regulation

 

This section provides that the title of the Regulation is the Criminal Code (Terrorist Organisation - Boko Haram) Regulation 2014.

 

Section 2 - Commencement

 

This section provides that the Regulation commences on the day after it is registered. 

 

Section 3 - Authority

 

This section provides that the Regulation is made under the Criminal Code Act 1995.

 

Section 4 - Terrorist organisation - Boko Haram

 

This section provides that for paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code, the organisation known as Boko Haram is specified.

 

Subsection 102.1(2) provides that Boko Haram is also known by the following names:

 

(a)    Group of the Followers of the Prophet for Propagation and Holy Struggle;

(b)   Jama'atu Ahlis Sunna Lidda'awati Wal-Jihad;

(c)    Jama'atu ahlu- Sunna Lidda' Awati Wal Jihad;

(d)   Nigerian Mujahideen;

(e)    Nigerian Taliban;

(f)    People Committed to the Propagation of the Prophet's Teachings and Jihad;

(g)   Western Education is Forbidden;

(h)   Yusuffiya Movement;

(i)     Yusuffiya Sect.

 

 

 

 


Attachment B

 

Boko Haram

Also known as: Western Education is Forbidden; Jama'atu Ahlis Sunna Lidda'awati Wal-Jihad; People Committed to the Propogation of the Prophet's Teachings and Jihad;

Jama'atu ahlu- Sunnah Lidda'Awati Wal Jihad; Group of the Followers of the Prophet for Propogation and Holy Struggle;

Nigerian Mujahideen; Nigerian Taliban; Yusuffiya movement; Yusuffiya sect

 

The following information is based on publicly available details about Boko Haram.  To the Australian Government's knowledge, these details are accurate and reliable and have been corroborated by classified information.

Basis for listing a terrorist organisation

Division 102 of the Criminal Code provides that for an organisation to be listed as a terrorist organisation, the Attorney-General must be satisfied on reasonable grounds that the organisation:

(a)    is directly or indirectly engaged in, preparing, planning, or assisting in or fostering the doing of a terrorist act (whether or not a terrorist act has occurred or will occur); or

(b)    advocates the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).

Details of the organisation

Objectives

Boko Haram's principal objective is the establishment of an Islamic state under Sharia law in Nigeria.  Its secondary goal is the wider imposition of Islamic rule beyond Nigeria.

Background

Boko Haram was initially formed as a non-violent religious movement in 1995.  It was made up of small bands of mainly young, middle-class Nigerians in the northern Muslim-dominated states of Nigeria under the leadership of Abubakar Lawan. Lawan later went to Medina, Saudi Arabia to undertake further study and appeared to have no further contact with the group.

In 2003, the Boko Haram Shura Council of leaders appointed Mohammed Yusuf as leader. He established a mosque and school in Maiduguri City, and the complex functioned as a recruitment centre.  Boko Haram began violent activities in December 2003, initiating unrest in northern Nigeria that prompted an extensive security force response.  Yusuf was captured by police in late July 2009 and died in police custody.

In August 2009, Sanni Umaru announced his leadership of the group.  No attacks were reported to have occurred until a change of leadership in 2010. 

In July 2010, Imam Abubakar bin Mohammed alias Abubakar Shekau declared himself as the new leader.  Since that time, the group has adopted a much more active and violent approach to advance its goals, undertaking frequent attacks of increasing complexity and effectiveness.

The group is based in Maiduguri, the capital city of Borno State in north-east Nigeria. It has established local nodes with individual operational commanders in order to facilitate operations in other states of Nigeria.

Boko Haram members have also settled in Niger with a view to recruiting new members and promoting violence within Niger.  There are also Boko Haram sleeper cells in Chad and Cameroon, illustrating the group's desire to impose Sharia law beyond Nigeria.

The group conducted its first attack against foreign interests in Nigeria on 26 August 2011 when it detonated a vehicle bomb against the United Nations headquarters in Abuja, Federal Capital Territory, killing at least 23 people. Since then, Boko Haram has continued to target foreign interests in Nigeria and neighboring countries.

Boko Haram elements received training, support, finance as well as weaponry from north western Africa terrorist group Al-Qa'ida in the Lands of the Islamic Maghreb (AQIM). Boko Haram supported the Movement for Unity and Jihad in West Africa (MUJAO), and furthermore, has been linked to the eastern Africa terrorist group al-Shabaab.

In May 2013, responding to Boko Haram's increasing presence and aggression over northeastern Nigeria, the Nigerian Government launched a major military campaign to purge Boko Haram from this region. Despite the ongoing military campaign, Boko Haram continues to conduct major attacks in the region- predominantly armed assaults against civilian and military targets.

 

Leadership and membership

Little is known of the characteristics of Boko Haram membership. The number of members has varied over time ranging between the high hundreds to several thousand, some in Boko Haram strongholds, others dispersed throughout northeast Nigeria and across the borders with Niger, Chad and Cameroon. Since the increased pressure from Nigerian military campaign in late 2013, Boko Haram has relied on force to conscript locals to its membership.

While the official leader of Boko Haram is Abubakar Shekau, it is unclear whether any individual has overall control of the entire group. There are indications the group has split into several factions led by individual senior commanders undertaking attacks under the banner of Boko Haram. There also may be divisions along ethnic lines and between those favouring dialogue with the Nigerian Government and those wanting to align more closely with al-Qa'ida and its affiliate groups such as AQIM. The factions share the aspiration to see Nigeria become an Islamic state, but are divided over the means by which to achieve this goal.

There have been conflicting reports of Shekau's death, but no official confirmation. Boko Haram has released videos of an individual claiming to be Shekau refuting reports of his death.

On 1 February 2012, a splinter group announced it had separated from Boko Haram to form a new group, Ansarul Muslimina Fi Biladis Sudan--or simply Ansaru. This split occurred because of dissatisfaction with the nature of current militant operations by Boko Haram that include attacks against Muslims. This Statement of Reasons does not include any activities undertaken by Ansaru.




 

Funding

In addition to receiving funding from AQIM, Boko Haram's funding activities include robbery of banks and community assets, and more recently, conducting kidnap-for-ransom operations against locals and foreigners.

There have been allegations that Boko Haram also received funding from members of the Nigerian elite in exchange for avoiding attacks, or directing attacks against opposition interests. 

Terrorist activity of the organisation

Directly or indirectly engaged in, preparing, planning, or assisting in or fostering the doing of terrorist acts

 

Boko Haram has conducted numerous attacks against Nigerian and foreign interests mostly in Nigeria but also in neighboring countries.  Its tactics include suicide bomb attacks, remotely detonated bombings, and small arms assaults--targeting civilian, military, police and government interests. More recently, it has been involved in kidnapping operations, both in Nigeria and neighbouring Cameroon.

 

Major recent terrorist attacks and activities for which Boko Haram has claimed responsibility or which are reliably attributed to Boko Haram include:

 

*         5 May 2014: Boko Haram attacked the town of Gamboru Ngala and reportedly killed 300 civilians.

*         14 April 2014: Boko Haram attacked a bus interchange on the outskirts of Abuja, killing 75 people. On 1 May a second explosion occurred at the same location.

*         14 April 2014: Suspected Boko Haram members kidnapped more than 200 girls from a secondary school in Chibok, Borno State.

*         1 March 2014: Suspected Boko Haram members conducted twin explosion attacks in Maiduguri, Borno State, Nigeria, killing at least 50 people, most of them children.

*         26 February 2014: Suspected Boko Haram members conducted three simultaneous attacks throughout Adamawa State, Nigeria. The first killed eight people in Kirchinga Village. The second killed 20 people including schoolchildren in the Shuwa village. The third killed more than four people and destroyed more than 100 shops in the village of Michika.

*         19 February 2014: Boko Haram attacked the town of Bama, Borno State, Nigeria, killing 115 people.

*         15 February 2014: Boko Haram attacked the village of Izge in Borno State, Nigeria, killing at least 106 people.

*         11 February 2014: Suspected Boko Haram members killed 51 people in an attack in Borno State, Nigeria, and abducted 25 school girls.

*         26 January 2014: suspected Boko Haram gunmen killed at least 85 people in Kawuri Village, Borno State, Nigeria and set hundreds of houses ablaze.

*         14 January 2014: a Boko Haram suicide vehicle-borne improvised explosive device (SVBIED) killed at least 43 civilians at a busy market in Maiduguri.

*         20 December 2013: Boko Haram launched an attack on Nigerian military barracks using small arms, explosives and improvised explosive devices (IEDs). An unknown number of people were killed.

*         15 November 2013: a French priest was kidnapped in northern Cameroon by Boko Haram. He was released on 31 December 2013.

*         17 September 2013: Boko Haram killed at least 140 civilians, including women and children, in an attack at Benisheikh City, Borno State.

*         6 July 2013: a Boko Haram attack on a school in Yobe State killed 42 people, mostly children.

*         7 May 2013: a coordinated attack in Bama, Borno State on a police station and prison by Boko Haram members killed 55 and led to the escape of 105 prisoners.

*         19 February 2013: Boko Haram kidnapped seven French nationals in far northern Cameroon. The hostages were later released, probably following a ransom payment.

*         17 June 2012: Boko Haram attacked three separate churches in Kaduna State, killing at least 50 people and wounding over 150 others.

*         3 May 2012: a Boko Haram attack on a police station in Banki, near the border of Cameroon, and a prison in Kumshe, Borno State, resulted in the killing of two prison wardens and the escape of an unknown number of inmates.

*         26 April 2012: Boko Haram detonated vehicle borne improvised explosive devices (VBIEDs) at the Abuja and Kaduna offices of Nigerian newspaper This Day, killing seven people.

*         16 February 2012: an attack on a prison in the town of Koton Karfe in Kogi State killed a prison guard and allowed 120 prisoners to escape. Boko Haram spokesman Abu Qaqa later claimed responsibility.

*         27 January 2012: a German engineer was kidnapped from Kano State and later killed. Boko Haram is suspected of involvement.

*         In 2 January 2012, Boko Haram issued an ultimatum demanding Christian communities leave northern Nigeria. Between 5 and 7 January 2012, more than 64 Christian civilians were killed in nine armed attacks targeting churches and areas populated by the ethnic Igbo Christian community in Gombe, Borno, Yobe, and Adamawa States.

*         25 December 2011: militants killed as many as 50 people, including security force personnel, in several suicide explosive, incendiary, and small arms attacks in Yobe, Niger, and Plateau states.  The majority of the attacks targeted Christian civilians celebrating Christmas.

*         4 November 2011: a series of attacks using SVBIEDs, IEDs and small arms targeting government and military sites, police stations, banks, churches and a mosque that killed over 150 people.  Boko Haram spokesman Abu Qaqa later claimed responsibility.

*         26 August 2011: at least 23 people, including 15 United Nations (UN) personnel, were killed and 60 others were wounded in an SVBIED attack targeting the UN offices in the capital Abuja.  Responsibility for the attack subsequently was claimed by Boko Haram.

*         16 June 2011: an SVBIED attack in the car park of the national police headquarters in the capital Abuja killed a traffic police officer and the bomber.  This is the first reported suicide bombing to take place in Nigeria.  On the same day, suspected Boko Haram militants detonated an IED near a church in the town of Damboa in Borno State, killing four civilians.

*         7 June 2011: a series of operations in Maiduguri, Borno State, killed at least 10 people.  On the same day, Boko Haram militants shot dead a prominent Wahhabi cleric, identified as Ibrahim Birkuti, in Biu, Borno State.

*         12 May 2011: a Briton and an Italian citizen were kidnapped in Kebbi State.  Both were killed on 8 March 2012 by AQIM-aligned members of Boko Haram during a failed rescue attempt by the Nigerian Security Service.

*         28 January 2011: suspected Boko Haram gunmen shot dead Alhaji Modu Fannami Gubio, the All Nigeria People's Party gubernatorial candidate in Borno State, along with six other civilians in Maiduguri.  The brother of the Borno State Governor Ali Modu Sheriff was also killed in the attack.

Advocating the doing of terrorist acts

 

Boko Haram has advocated the doing of terrorist acts, including:

 

*         Boko Haram leader Abubakar Shekau has stated publicly that Boko Haram continued to plan and prepare future terrorist attacks. Media releases by the group on 19 February 2014 threaten world leaders and claim Boko Haram continues to target Western interests.

*         Boko Haram has released videos showing Shekau claiming Boko Haram will continue to kill those who stand against the will of Allah.

*         Throughout 2013 and in early 2014, Shekau appeared in videos claiming responsibility for attacks in Nigeria, and threatening future attacks.

 

Conclusion

 

On the basis of the above information, ASIO assesses Boko Haram is directly and indirectly engaged in, preparing, planning, assisting in or fostering the doing of terrorist acts and advocates the doing of terrorist acts involving threats to human life and serious damage to property.

 

In the course of pursuing its objectives, Boko Haram is known to have engaged in acts that:

*         cause, or could cause, serious damage to property, the death of persons, endanger a person's life or create a serious risk to a person's safety;

*         are intended to have those effects, or create a serious risk to the safety of the public or a section of the public of Nigeria;

*         are done with the intention of advancing Boko Haram's political, religious or ideological causes; and

*         are intended to coerce or intimidate the government of a foreign country and sections of the public globally.

 

This assessment is corroborated by information provided by reliable intelligence sources.

 

Other relevant information

Links to other terrorist groups or networks

Boko Haram has links with AQIM, including:

*         On 14 June 2010, the leader of AQIM, Abdelmalek el-Droukdal, was reported in the press as stating that his group would provide Boko Haram with support and weapons to build strategic depth in Africa.

*         On 23 February 2012, Nigeria's military chief publicly stated Boko Haram had ties to AQIM, and received support and training from AQIM.

*         Media reporting indicates Nigerians associated with Boko Haram had a presence at AQIM training camps in the Sahel and that some had received training from the Somalia-based extremist group al-Shabaab.

 

Engagement in peace/mediation process

One faction of Boko Haram is reported to favour peace talks with the Nigerian Government and has nominated representatives to enter into a dialogue with the government.  However, negotiation in 2011for a Boko Haram cease fire failed as Boko Haram's demands--an end to the arrest and killing of its members, payment of compensation to families of members killed, and prosecution of policemen responsible for the death of the groups former leader Mohammed Yusuf--were never met. In March 2012, attempts at discussions collapsed when a Boko Haram spokesperson stated it has 'closed all possible doors of negotiation'.

The Nigerian government established an Amnesty Committee in April 2013 to assist in direct negotiation with Boko Haram. The committee has made contact with members of Boko Haram willing to engage in dialogue; however, Shekau has repeatedly publically denied taking part in any talks.

There has been no official announcement by either the Nigerian government or Boko Haram of a peace agreement.

Links to Australia

There are no known links between Boko Haram and Australia.

 

Boko Haram has not made statements specifically threatening Australians or Australian interests. However, Boko Haram has issued statements threatening Westerners and Western interests in general.

 

Proscription by the UN and other countries

On 4 June 2013, Nigerian President Goodluck Jonathan approved the proscription of Boko Haram as a terrorist organisation under Nigerian law. This was followed by the United Kingdom in mid 2013. On 13 November 2013, the United States of America listed Boko Haram as a proscribed terrorist organisation and on 24 December 2013, Canada listed Boko Haram as a current terrorist entity. New Zealand designated Boko Haram as a terrorist entity on 1 April 2014.  The United Nations Security Council listed Boko Haram as an entity subject to sanctions under resolution 1267 on 22 May 2014.

 


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